A conservative response to the Supreme Court’s gay marriage decision

Kennedy announced a constitutional right to dignity when he should have stuck to equal protection. The Court can't grant anyone "dignity," but only ensure that the laws apply equally to all.

U. S. Supreme Court building, Washington, D.C.
U. S. Supreme Court building, Washington, D.C. (Via Wikipedia)

SINGAPORE, June 27, 2015 — News of the U.S. Supreme Court’s establishment of a constitutional right to marry for homosexuals comes to Asia later in the evening than it does in the U.S.  The constitutional and legal dimensions of the issue present an interesting contrast to the situation here in Singapore.

There is very little noticeable public homosexuality in Singapore. That is, there is little overt behavior that could be characterized as “gay” among men here, little that one would notice by way of body language and speech patterns.

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Section 377(a) of the Singapore Penal Code, “Outrages on decency,” essentially outlaws homosexual behavior:

“Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.”

This law was challenged before the Singaporean Supreme Court late last year, with the Court upholding the constitutionality of the law. The reasoning was interesting in light of the U.S. Supreme Court’s decision. According to The Economist Magazine,

“The court itself, both in oral arguments last summer and in this ruling, repeatedly expresses unwillingness to consider ‘extra-legal’ and ’emotional’ arguments, which have their place in the legislative rather than the judicial process.”

The court, according to its ruling, was to be “independent, neutral and objective”, though in the early, throat-clearing section of the ruling the court noted that it grants the government a “presumption of constitutionality” because “our legislature is presumed not to enact legislation which is inconsistent with the Singapore Constitution.”

This is a remarkable contrast to Justice Anthony Kennedy’s majority opinion:

“As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

I draw this contrast for two reasons. First is that Kennedy is simply wrong. “Equal dignity” is simply not the same as “equal protection.” The former is affirmative and the latter is negative.

To say that homosexuals enjoy “equal protection” under the law is to insist that the protections available to heterosexuals are also available to homosexuals. To say that it is “negative” is to say that it asserts that certain things cannot be done to a person, or denied to that person, based on their sexual orientation.

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It would be perfectly logical to insist that “civil union” laws afford gay couples all of the same protections and privileges as straight couples enjoy by virtue of marriage. But that isn’t the issue here.

Kennedy’s is an argument about the “dignity” afforded by the meaning of the word “marriage.”  Where he has it wrong is when he assumes the Court has jurisdiction over fundamentally extra-legal things like “dignity.” The law is fundamentally negative: it says what cannot be done and prescribes sanctions for those who do those things which are unlawful. Dignity is fundamentally affirmative. It is the culture, not the law, which affords “dignity.”

Kennedy has utterly missed this distinction.

Second, the Court wades into these cultural controversies as if it had jurisdiction over the culture as opposed to the law. Even a Justice as liberal as Ruth Bader Ginsburg has noted that Roe v. Wade short circuited a political process which would likely have rendered much more durable rights to women.

Given the transformation of public opinion, especially among the “Millennial” generation, the same can likely be said of the larger issue of homosexuals.

As a conservative Evangelical Christian I have listened to the tenor of the debate as articulated by “our side” with increasing discomfort. From the lunatic fringe of “God hates fags” posters to the increasingly angry rants of Evangelical mega-church and para-church leadership, I am left to wonder what it means to recognize the “image of God” in my gay neighbor and to present that same “image” to him or to her.

For me, it increasingly means insisting that my interactions with him or her be freed from the baggage of these cultural arguments.

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I simply want to be free to make someone’s day a little better for their having encountered me, whether they are gay or straight.

Justice Kennedy has just made that far more difficult for his wading into cultural waters in which he and his colleagues simply do not belong.

But these are now the “facts on the ground,” and conservatives have to be very careful.  If we organize to reverse these things, we will likely only further entrench the view among the increasingly young electorate that we are a bunch of moral scolds. If we indulge ourselves in this sacrament of confirmation for our political bona fides, it will likely come at a steep electoral cost. This is simply not a path toward a judiciary which restrains itself to the law as opposed to the culture.

At the end of the day, this is about the next election and the next conservative generation. The next conservative generation needs to look at us and see a good neighbor before they hear a good argument.

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